Luxembourg, 02/07/2001 (Agence Europe) - The Italian law of 1931 that provides for only Italian nationals to be employed in security firms or as sworn private security guards is incompatible with European law and must be changed.
The Fifth Chamber of the European Court of Justice presided by Italian Judge Antonio La Pergola considers "the concept of employment in the public service does not encompass employment by a private natural or legal person, whatever the duties of the employee. Thus, it is undeniable that sworn private security guards do not form part of the public service". Article 33 of the EU Treaty stipulates that "Member States may reserve certain forms of employment in the public administration to their own nationals ". The Court of Justice had added in several rulings that this is on condition that such posts involve the exercise of official authority (Ed.: thus, the post of guard in a Ministry may be reserved for a national but not that of nurse in a public hospital or employment as a worker in a municipal garden)
Italy had wished to keep the existing legislation. It explained that the condition of being an Italian national was justified. The sworn private security guards were under the control of the Questore, or chief of police. Furthermore, they perform police functions in preventing and restraining the commission of criminal offences, functions which constitute more than mere assistance to the forces of law and order.
The European Commission, on the other hand, believes such guards only play the role of police auxiliaries and that the possibility of making arrests for minor offences is "something which is on the periphery of the functions which sworn private security guards are normally called upon to perform". This power is "an aspect which is separable from the professional activities of sworn private security guards as a whole, and cannot justify a situation in which the entire profession is dispensed (…) from having to comply with the Treaty provisions relating to freedoms".
At the hearing, the Italian government had pointed out that all the sworn guards are employees. None exercises the profession in the capacity of a self-employed worker.
The Court had found Spain guilty in a similar case in 1998 (see EUROPE of 31 July 1998, p.5). In this judgement, it had decided that "the activities of undertakings providing caretaking and security services are not normally directly and specifically connected with the exercise of official authority".